Mendocino County Municipal Code Ch. 9.35 Ihss Public Authority Ordinance

The ordinance codified in this Chapter shall be known as the "IHSS Public Authority Ordinance."

(Ord. No. 4093 (part), adopted 2002.)

As required by Welfare and Institutions Code Section 12302.25, the Board of Supervisors of Mendocino County determines that the establishment of a public authority whose powers are derived from and consistent with the provisions of Welfare and Institutions Code Section 12301.6 is necessary for the public health and welfare. The public authority shall serve as the employer of providers of in-home supportive services for purposes of the Meyers-Milias-Brown Act.

(Ord. No. 4093 (part), adopted 2002.)

For purposes of this Chapter, the following definitions apply:

(A) "Authority" means the Mendocino County In-Home Supportive Services Public Authority.

(B) "Provider" means a person who provides authorized in-home supportive services.

(C) "Client" means a person eligible for and authorized to receive in-home supportive services.

(D) "IHSS" means the Mendocino County In-Home Supportive Services Program.

(E) "County" means Mendocino County.

(F) "Directors" means the governing body of the Public Authority.

(Ord. No. 4093 (part), adopted 2002.)

The Board of Supervisors establishes a public authority whose powers and authority are derived from and consistent with the provisions of Welfare and Institutions Code sections 12300 et seq. The public authority shall be known as the Mendocino County In-Home Supportive Services Public Authority and shall be referred to as the "Authority."

(Ord. No. 4093 (part), adopted 2002.)

The governing body of the Authority shall be the Mendocino County Board of Supervisors.

(Ord. No. 4093 (part), adopted 2002.)

The County's In-Home Supportive Services (IHSS) Advisory Committee was established by the Mendocino County Board of Supervisors in accordance with the requirements of Welfare and Institutions Code section 12301.6(b)(C), (D). The existing IHSS Advisory Committee shall serve as the advisory committee to the Authority and shall fulfill the roles and responsibilities required by Welfare and Institutions Code section 12301.6.

The IHSS Advisory Committee will be composed of eleven (11) members at least fifty percent (50%) of whom are current or past clients of personal assistance services paid for through public or private funds and shall be appointed by the Board of Supervisors. The term of service shall be two (2) years, but may be re-appointed to subsequent terms at the desire of the committee member and the approval of the Board of Supervisors.

(A) Membership on the IHSS Advisory Committee shall be as follows:

Six (6) members who are current or previous users of personal assistance services paid for through public or private funds who are representative of the Mendocino County IHSS caseload;

Two (2) members who are current or former IHSS providers;

Three (3) members with experience in program development, administration and fiscal management who represent or advocate for home care service delivery organizations and their consumers.

(B) The IHSS Advisory Committee shall provide ongoing advice and recommendations regarding in-home supportive services to the County Board of Supervisors, any administrative body in the County that is related to the delivery and administration of in-home supportive services, and the Directors and administrative agency of the Authority.

(Ord. No. 4093 (part), adopted 2002.)

The duties and responsibilities of the Authority shall be as follows:

(A) To implement the goals and objectives of Welfare and Institutions Code section 12301.6, including, but not limited to:

(1) The provision of assistance to clients in finding in-home supportive services personnel through the establishment of a registry;

(2) The investigation of the qualifications and background of potential in-home supportive services personnel;

(3) The establishment of a referral system under which in-home supportive services personnel shall be referred to clients;

(4) The provision for training for providers and clients; addressing the special needs and making reasonable accommodations for accessibility for blind and hearing impaired, frail elderly, disabled; specialized training for caregivers;

(5) The performance of any other functions related to the delivery of in-home supportive services; and

(6) The assurance that the requirements of the personal care option pursuant to Subchapter 19 (commencing with section 1396) of Chapter 7 of Title 42 of the United States Code are met.

(B) To exercise all powers, duties and functions as are prescribed by statute, Ordinance of the Board of Supervisors and the Authority.

(C) Notwithstanding subdivision (A)(4), the Authority shall not be obligated to, but may provide training directly, to pay for training provided privately or in the community, to pay for the providers' time spent in training, to accompany clients to training, to pay for transportation to training or to pay for any materials required by the training. The Authority shall not be obligated to ensure that any provider or client attend or complete any training.

(D) Pursue and apply for available additional funding for IHSS services through grants and other non-profit sources of funding.

(E) The Authority shall not be responsible for:

(1) Authorizing services for an IHSS client;

(2) Determining a client's need for IHSS, the level and quality of services required and the eligibility of individuals to be served;

(3) Conducting the initial or any subsequent assessment of need for services;

(4) Terminating the client's participation in the IHSS program;

(5) Providing advice to clients with respect to client's hiring and firing of providers;

(6) Client problem solving;

(7) In-home monitoring of service delivery;

(8) In-home client IHSS orientation;

(9) The above-referenced services and functions shall be the exclusive responsibility of the County of Mendocino.

(Ord. No. 4093 (part), adopted 2002.)

(A) The Authority shall be an entity separate from the County of Mendocino and shall file the Statement of Fact for the Roster of Public Agencies required by Government Code section 53051.

(B) The Authority shall be a corporate public body, exercising public and essential governmental functions with all powers necessary and convenient to carry out the powers conferred upon it by Welfare and Institutions Code sections 12300 et seq. and this Ordinance, including the power to contract for services pursuant to Welfare and Institutions Code sections 12302 and 12302.1, subject to any limitations set forth in this Chapter.

(C) The Authority shall have the power in its own name to do any of the following:

(1) To contract for the services of planners, financial consultants, and other experts and, separate and apart therefrom, to employ such other persons as it deems necessary;

(2) To sue and be sued in its own name;

(3) To incur debts, liabilities or obligations subject to any limitations herein set forth;

(4) To apply for, accept and receive state, federal or local licenses, permits, grants, loans or other aid from any agency of the United States of America, or of the State of California necessary for the Authority's full exercise of its powers;

(5) To perform all acts necessary and proper to carry out fully the purpose of this Chapter and not inconsistent with Welfare and Institutions Code sections 12300 et seq. or this Chapter.

(D) To promote administrative efficiencies and to avoid unintended duplication of resources prior to initiating delivery of IHSS through the Authority, as described in this Chapter, the County and the Authority shall enter into an agreement specifying the purposes, scope or nature of the agreement, the roles and responsibilities of each party including provisions that further compliance with all applicable County, State and Federal labor laws, and compliance with all statutory and regulatory provisions applicable to the delivery of IHSS.

(E) The Authority shall be deemed to be the employer of IHSS providers within the meaning of Chapter 10 (commencing with section 3500) of Division 4 of Title 1 of the Government Code, commonly known as the Meyers-Milias-Brown Act. However, clients shall retain the right to hire, fire and supervise the work of any in-home supportive services personnel providing services to them.

(F) In order to assure the preservation of the individual provider mode and limit the liability of the Authority, the Authority shall have no authority or jurisdiction to regulate, control, or limit the rights and responsibilities of clients of in-home supportive services to hire, fire or supervise providers. The right to supervise includes, but is not limited to, the right to determine matters such as work schedules, IHSS Program approved and authorized tasks and duties, assignments and direction of work, methods and standards of care and conduct, discipline, provisions for safety and security, control of premises, any in-home living or other accommodations and final resolution of concerns, problems and complaints relating to such supervision. Clients retain such rights and responsibilities independent of the Authority, just as they held such rights and responsibilities independent of the County prior to the formation of the Authority.

(G) Nothing in these enumerated powers shall be construed to alter, require the alteration of, or interfere with the State's payroll system and other provisions of Welfare and Institutions Code section 12302.2 for independent providers of IHSS, or to affect the State's responsibilities with respect to unemployment insurance, or workers' compensation for providers of IHSS.

(Ord. No. 4093 (part), adopted 2002.)

(A) Any obligation or legal liability of the Authority, whether statutory, contractual or otherwise, shall be the obligation or liability solely of the Authority and shall not be the obligation or liability of the County of Mendocino.

(B) All contracts, leases or other agreements of any nature, including collective bargaining agreements, between the Authority and any party, except those with the County, shall contain the following statement: "The Authority is an independent legal entity, separate and apart from the County of Mendocino. The Authority has no power to bind the County to any contractual or legal obligations. Nor may the obligees of the Authority seek recourse against the County of Mendocino for any financial or legal obligation of the Authority".

(C) The Authority shall not be deemed to be the employer of IHSS providers for purposes of liability because of the negligence or intentional torts of the IHSS providers.

(D) The County shall be immune from any liability resulting from its implementation of Welfare and Institutions Code sections 12301.6 et seq. in the administration of the In-Home Supportive Services Program.

Any obligation of the Authority, whether statutory, contractual, or otherwise, shall be the obligation solely of the Authority, and shall not be the obligation of the County.

(E) The Authority shall maintain all insurance coverage necessary in an amount to be determined adequate by the Directors. If the Authority purchases its own insurance, the limits of liability shall be in an amount acceptable to the Directors and shall name the County, its elected and appointed officers, employees and agents, as an additional insured.

(F) The Authority shall indemnify, defend and hold harmless the County, its elected and appointed officers, employees and agents from and against any and all liability, including defense costs and legal fees, resulting from claims for damages of any nature whatsoever, including but not limited to personal injury or property damages arising from or connected with any act or omission of any officer, employee or agent of the Authority.

(G) The Authority shall require all third parties with whom it contracts, other than the County of Mendocino, to indemnify the Authority, to provide the Authority with written acknowledgment of such indemnification and to maintain adequate levels of insurance naming the Authority as an additional insured.

(Ord. No. 4093 (part), adopted 2002.)

The Directors of the Authority shall contract for a Public Authority Program Manager and staff necessary to administer the Public Authority through a contract with the Department of Social Services, and shall provide broad policy direction.

(Ord. No. 4093 (part), adopted 2002.)

(A) The Authority shall adopt rules and regulations for administration of employer-employee relations. Only those employee organizations recognized in accordance with the Authority's labor relations resolution shall be entitled to negotiate with the Authority on matters within the scope of representation and such other rights that may be granted to recognized employee organizations pursuant to sections 3500 through 3511 of the Government Code.

(B) Due to the special and critical health-care services provided through the IHSS program, the Board of Supervisors finds that any interruption of such services would pose an imminent threat to the health and safety of the clients of IHSS services and to the community. In order to minimize the likelihood of such interruption and thereby protect the health and safety of clients and to promote harmony and productive labor relations between the Authority and any labor organization that seeks to represent or represents the providers of services to clients of IHSS services:

(1) The Authority shall have a non-strike clause in any and all collective bargaining agreements with providers of the Authority. The nonstrike clause shall continue at least one (1) year beyond the other provisions of any and all collective bargaining agreements; and

(2) The Authority shall take all legal action necessary to bar any strike or other concerted interruption of services to IHSS clients.

(C) The Authority shall establish rules and regulations respecting the labor relations responsibilities of the Authority, and such rules shall provide that a showing of interest of at least fifteen percent (15%) of the eligible providers, shall be a sufficient showing of interest for any labor organization to initiate any election or representation procedures established by the Authority for the purposes of certifying an exclusive representative for purposes of collective bargaining. A fifteen percent (15%) showing of interest is being used here, solely due to the unique aspects of the care providers.

(Ord. No. 4093 (part), adopted 2002.)

The Authority shall adopt its budget under the same laws, rules and policies that control the County budget process. The Authority will be maintained as a separate budget entity. The budget will be submitted to and adopted through the Department of Social Services.

(Ord. No. 4093 (part), adopted 2002.)

(A) The establishment and operation of the Authority or application of Government Code section 3500, et seq., shall not result in payments from the County's general fund beyond the County's annual appropriation for the Authority, if any, which shall be an absolute limit on County cost.

(B) The total of all operating costs, wages and benefits proposed or established by the Authority shall be consistent with the provisions of the County budget. The Authority shall not establish a payment rate, including costs of wages, benefits and operation, until the Authority determines that the funds necessary for the payment rate are legally available. The annual appropriation for the Authority, if any, contained in the County's fiscal budget for any fiscal year shall be an absolute limit on County cost for that fiscal year.

(C) The Authority shall adopt its budget under the same laws, rules and policies that control the County budget process.

(D) The Authority shall submit annually a report to the Board of Supervisors detailing its functions and evaluating its operation for that year. In addition, such report shall present the Authority's specific goals and objectives for the coming year and its plan for meeting those goals and objectives. If, for any coming year, the Authority intends to expand its duties, the Authority shall present a detailed plan and budget for the implementation of that expansion of duties. Such plan shall be circulated to all interested County Departments and community groups prior to presentation to the Board of Supervisors.

(Ord. No. 4093 (part), adopted 2002.)

The Authority shall develop a record retention policy consistent with County, State, and Federal laws and policies. The Authority shall make any of the retained records available to all authorized County, State and Federal representatives.

(Ord. No. 4093 (part), adopted 2002.)

By repeal of this Chapter, the Board of Supervisors may abolish the Authority.

(Ord. No. 4093 (part), adopted 2002.)

If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional and invalid, such decision shall not affect the validity of the remaining portion of this Ordinance. The Board of Supervisors declares that it would have passed the Ordinance codified in this Ordinance and every section, subsection, sentence, clause or phrase, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared unconstitutional or invalid.

(Ord. No. 4093 (part), adopted 2002.)